Glanville v TCN Channel Nine Pty Ltd

Reasons for refusing the adjournment 23The adjournment application was based primarily on the oral evidence of Dr Cash. Mr Stewart noted that, on the strength of the history given to Dr Cash and the clinical notes examined by him Mr Glanville was, on Thursday last, in a state of extreme anxiety evidenced by his account of lying in a foetal position and having suicidal thoughts. 24In addition to Dr Cash's oral evidence given yesterday, both the plaintiff and the defendants tendered reports previously written by him. One observation that may be made as to those reports is that they confirm my impression formed during Dr Cash's oral evidence that he is a careful, caring and sensible psychiatrist. I have no difficulty accepting his evidence, so far as it goes. 25The consistent theme of the evidence given yesterday and the written reports is that the plaintiff's principal difficulty is that he is prone to become very anxious. When he is anxious, his thoughts race and he becomes less articulate. In a written report provided in 2010, Dr Cash described the plaintiff as being "probably a constitutionally anxious person". He rejected any diagnosis of two alternative conditions posited (Exhibit 1 on the adjournment application at pages 3 and 4). 26In a more recent report dated 15 February 2013, Dr Cash noted that, at times when the plaintiff becomes anxious and concerned as to the conduct of others, his thinking borders on the delusional. After a careful analysis of that issue, however, Dr Cash concluded that, for the most part during his treatment of the plaintiff, he has thought that the plaintiff was not delusional but "just extremely anxious". 27On the strength of the evidence of Dr Cash, I am satisfied that Mr Glanville was unable to give evidence last Thursday or Friday. The position is less clear as to Monday and Tuesday of this week when, following good rest on the weekend, Dr Cash described his state as being much improved. On balance, I would accept that he was still unable on those days to face cross-examination in a way that would be fair to his cause. I do not think I have any proper basis for rejecting Dr Cash's opinion that, even as at yesterday, Mr Glanville was not able to give evidence and "wouldn't really be up to any kind of intensive crossexamination right now". However, there is nothing in Dr Cash's evidence to explain Mr Glanville's failure to attend Court at all or to attend upon his solicitor to give instructions as to the further conduct of the trial. 28Further, the significance of the determination that he was unable due to his mental state to face cross-examination must be considered in the context of all of the relevant circumstances. First, an important consideration is the likelihood that, if the hearing is adjourned, Mr Glanville will again become highly anxious and will be unable to face further cross-examination when the hearing is resumed. Dr Cash accepted that there was "some chance of that" and that no one could guarantee it would not be the case (T323.49). He emphasised that he did not think the risk of a further failure to attend was probable. He thought that Mr Glanville could probably get through "another couple of days" of giving evidence, particularly if some supports were put in place (such as attendance at the hearing by the plaintiff's partner). 29Dr Cash agreed that the source of the plaintiff's anxiety is the present proceeding. He stated, however, that he thought the plaintiff "would still believe in his own case" and would be able to defend his opinion that "some of the things that were said about him on the television programme were not true". He referred by way of example to the imputation relied upon by the plaintiff that he is a criminal or has a criminal record. Dr Cash said "he would be able to tell you why he thought that was not true" and said that the proceedings have not changed the plaintiff's total opinion about himself - rather his anxiety is about "wanting to be accurately heard". 30I have the advantage of Dr Cash in that I am able assess the position having heard Mr Glanville's evidence and with an understanding of the issues in the case. I acknowledge that the cross-examination is incomplete and that Mr Glanville has not yet had the opportunity to give evidence in re-examination. Accepting that the assessment of his evidence is constrained to that extent, the simple fact is that he has made many concessions which are irretrievably damaging to his case. I do not have any doubt that his present state of acute anxiety is due to a significant degree to his appreciation of that fact. 31In my assessment, based on the evidence I have heard so far and my knowledge of the material on which it remains for Mr Glanville to be cross-examined (as outlined by Mr McClintock during argument), there is a substantial risk that, if the proceedings were adjourned, the plaintiff would again find himself unwilling or unable, owing to acute anxiety, to attend court. The acknowledged source of Mr Glanville's anxiety (these proceedings) would remain. There is every prospect that the matters that have caused him to spiral into a state of incapacity on this occasion would be worse on the next. Specifically, it seems likely that his anxiety would be exacerbated by his awareness of what is coming from Mr McClintock, who has what can only be described as a strong documentary case against Mr Glanville. 32Mr Glanville should also, if he is thinking rationally, be anxious about his exposure to liability for the costs of the lost days, whatever the result in the proceedings. It is important to look closely at the position as to costs, which in my view is a second consideration militating against granting an adjournment. 33The defendants relied upon the affidavit of Mr Paul Svilans sworn 27 August 2013 setting out their costs thrown away by reason of the plaintiff's failure to attend Court over the past four days and an estimate of the additional preparation costs which would be incurred in working the matter up for hearing again following an adjournment. The total amount of the costs estimated by Mr Svilans is $140,000. I would note that the estimate includes some costs attributed to lost time on the first two days of the hearing. I do not think those costs are properly a part of the present issue. Further, it may be expected that there would be some discount to those costs upon assessment. Nonetheless, the costs occasioned by an adjournment would on any view be substantial, potentially in the order of $100,000. 34Mr Stewart acknowledged that I would be entitled to infer on the evidence I have heard in the proceedings that the plaintiff, if not impecunious, is unable to meet a costs order in such an amount. He has informed the Court that his own costs are presently being met by his parents. Having regard to the circumstances in which Mr Stewart came onto the record, it seems unlikely that they have had the opportunity to receive informed advice from a lawyer as to the plaintiff's prospects of success in the action. 35It is difficult to see how, in the present circumstances, the plaintiff could resist an order that he pay the defendants' costs thrown away and additional costs to be incurred by reason of any adjournment. Mr Stewart accepted as much, but submitted that to impose payment of such costs as a condition of any re-listing would stultify the proceedings in circumstances where the plaintiff has not yet had an opportunity to respond to matters raised in cross-examination or to give instructions to his solicitor on further evidence tendered by the defendants in his absence. The point was well put by Mr Stewart (who, I would wish to observe, has conducted the proceedings with courage and propriety in extremely difficult circumstances). 36Plainly, to allow the adjournment, with all the costs necessarily thrown away on that account, will cause prejudice to the defendants if those costs are unrecoverable. Conversely, if a conditional adjournment would stultify the plaintiff's prosecution of his claim, that is a prejudice to him. The assessment of those competing factors must necessarily be informed by the next consideration, which is to examine the apparent merits of the plaintiff's claim.

Merits of the claim 37The program was introduced by the presenter, Ms Tracie Grimshaw, as follows: Well now for our 12-month investigation into the life of a rogue modelling agent, a man who has now set out to destroy the pioneer of the business, Ms June Dally-Watkins. David Glanville preys on young beautiful women, but as you are about to see, this time, he has met his match. 38What followed was a slightly disjointed collection of footage including excerpts from an interview with Miss June Dally-Watkins, footage of the reporter confronting Mr Glanville and his responses to her, comments from individual models and another modelling agent and commentary by the reporter. 39The opening footage shows Miss June Dally-Watkins saying "I don't know that he has any reputation, except not a good reputation". Mr Glanville is then shown running up the street being chased by the reporter, who calls out "we'd like to talk to you about claims you're ripping off young models". The programme continues in that vein. It is undoubtedly highly critical of Mr Glanville. 40Mr Glanville alleges that the broadcast conveyed the following meanings defamatory of him: (a)that he has set out to destroy the pioneer of the modelling business, June Dally-Watkins; (b)that he is ripping off young models; (c)that he is a convicted criminal; (d)that he preys on young beautiful women; (e)that he is, by deliberate and improper conduct, attempting to demolish Dallys Model Agency; (f)that he has been bullying June Dally-Watkins for the last four years; (g)that he is a conman; (h)that he takes advantage of aspiring young models by promising them the world and delivering nothing. 41In response to that claim, the defendants have pleaded the defences of truth and contextual truth. It is not necessary in the circumstances to descend to the detail of the truth defence but some explanation is appropriate. 42The defence addresses the plaintiff's imputations in three categories. The first is what may be described as the treatment of young models (imputations (b), (d), (g) and (h)). The defence in response to those imputations was to be established by calling a number of young models as witnesses but the defendants have also mustered a body of damning documents. The documents tend to establish that a number of young models have performed modelling work arranged by the plaintiff but have not been paid by him, even though he has been paid by the relevant clients. Others complain of paying relatively large sums of money for little return. 43It is difficult to find words to describe the impact of the plaintiff's evidence on those issues. It did not go well for him. He acknowledged failing or refusing to pay a number of models for no better reason than that he did not have the money to do so, notwithstanding the fact that he had received payment from the relevant clients. The correspondence reveals that, when politely and reasonably pursued by the models for payment, he was evasive and often abusive. In one instance he acknowledged that he had spent the payment owed to two models to buy a car for himself. His correspondence with a number of the models involved is shockingly rude on his part. 44When cross-examined about those matters, the plaintiff was at times apparently remorseful, at times quite frank in accepting Mr McClintock's characterisations of his conduct, at other times defiant in his own defence. What was most astonishing was his complete obliviousness to the likely impact of his conduct on the lives of others. Acknowledging that I have not heard all the evidence in the case, I was left with the clear impression that defendants' prospects of establishing the substantial truth of at least some of those imputations appeared strong. 45The second category of the defence responded to the stand-alone defamatory meaning expressed in imputation (c), that the plaintiff is a convicted criminal. The issue as to that imputation does not turn on whether the plaintiff has ever committed a criminal offence. He has committed several. The truth or otherwise of the imputation turns on whether it is accurate to say that he was "convicted". 46In 2005, Mr Glanville pleaded guilty to an offence of unlawful stalking with an intentional threat to use violence. The circumstances of the offence were as follows. Mr Glanville put a deposit of $1000 on a watch at Watches of Switzerland. He then formed the view that he had over-extended himself financially in the conduct of his business. He wanted to obtain a return of the deposit. The store manager initially agreed but, after speaking to her supervisor, informed Mr Glanville that she could only give him a store credit. He responded by making a series of extraordinary threats to her culminating in a statement to another employer of the store that he was on his way over "to break her fucking legs with a baseball bat". 47It was an offence which the learned sentencing judge described as "serious criminal behaviour" which would normally have attracted a sentence of imprisonment, "perhaps even actual imprisonment". However, the sentencing task was complicated by later events entirely unrelated to the nature of Mr Glanville's offending. Upon his arrest Mr Glanville was refused bail. By the time he entered his plea of guilty to the offence he had been remanded in custody for almost 5 months. During that time, he was viciously assaulted by another prisoner, resulting in the loss of an eye. The sentencing judge, whilst not expressly referring to the authorities relating to extra-curial punishment, plainly took those events into account in passing sentence. He determined not to record a conviction and released the plaintiff on a parole order on terms requiring him to accept counselling for anger management issues. 48The plaintiff's point in respect of that offence appears to be that his conviction was not recorded. It is clear enough, however, that as a matter of law there was a conviction. The law of Queensland provides, in s 12 of the Penalties and Sentences Act 1992, that the Court may exercise a discretion to record or not record a conviction. A conviction is defined in s 4 to mean "a finding of guilt, or the acceptance of a plea of guilty, by a court". Mr Glanville's counsel, Mr Craig Chowdury, persuaded the sentencing judge not to record the conviction but it is clear that there was a conviction in law upon the court's acceptance of Mr Glanville's plea. Accordingly, the truth defence turns on a nice point of meaning as to the effect of the sentencing judge's exercise of his discretion under s 12. 49On that understanding, as with the imputations concerning mistreatment of models, the defendants' prospects of establishing the substantial truth of imputation (c) appear to be strong. 50Further, it may be readily be concluded that, even if the defendants were unsuccessful in establishing that the imputation is substantially true, it would not sound in substantial damages. There is no substantial contest as to the underlying criminal behaviour, which had previously received the attention of another television broadcast. 51The last category of imputation may be referred to as the June Dally-Watkins imputations. The plaintiff has not yet been cross-examined as to those matters. However, the documents tendered by the defendants reveal a strangely aggressive series of emails and phone calls from the plaintiff strongly supporting the conclusion that he had undertaken an aggressive campaign against the Brisbane modelling agency associated with Miss June Dally-Watkins. It is not possible to determine on the material before me whether the defendants would have established the substantial truth of those imputations but I am able at least to say that there appears to be a strongly arguable defence, at least to some of the imputations. 52In the result, there appears to be a substantial risk that the plaintiff's claim, currently being funded by his mother, will be unsuccessful. Based on my experience of defamation proceedings, I consider there is a substantial risk that, even if partly successful, the costs of the action will be disproportionate to the amount of any damages awarded. 53I acknowledge that an award of damages is not the only object of an action in defamation and that vindication of reputation is also an important aspect of the proceedings. I have taken that factor into account, bearing in mind the matters considered above. 54For those reasons I have concluded that the application for an adjournment should be refused.

Reasons for concluding that the proceedings should be permanently stayed 55Mr McClintock submitted that, if I were not minded to grant an adjournment, I should dismiss the proceedings for the plaintiff's default in failing to appear. He acknowledged that such an order would not expressly fall within the Court's power under s 61 of the Civil Procedure Act, since there has been no failure to comply with a direction. He submitted, however, that a witness, once sworn, is under the control of the court and it would be within the court's inherent jurisdiction to dismiss proceedings where a plaintiff failed to appear after being sworn and before being excused. 56It is not necessary to resolve the interesting questions raised by that submission. Mr McClintock acknowledged that it was premised upon my not accepting the evidence of Dr Cash. Since I have accepted that evidence, there is no occasion for dismissal of the proceedings on that basis. 57Mr McClintock submitted alternatively that, if the adjournment were refused, it would be open to conclude the hearing and determine the claim on its merits. I accept that circumstances may arise in which that would be a proper course to adopt. I do not think it is appropriate in the circumstances of the present case. Foremost amongst my reasons for rejecting that course is the consideration that the purpose of the cause of action in defamation is vindication of reputation. In an action for defamation where the publisher relies upon the defence of truth, the stakes are high. A plaintiff may obtain complete or only partial vindication of his reputation. Alternatively, he may, by an unsuccessful action, exacerbate the damage done by the original publication. 58I do not think I am in a position to conclude that, had the plaintiff been in a position to avail himself of the opportunity of completing his evidence and completing the hearing, the exercise of that opportunity could not possibly produce a different result from the result that would be obtained if I were to determine the matter on the strength of the evidence presently before the Court: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. In that circumstance, I do not think it would be fair to the plaintiff to proceed to final judgment at this stage. 59I have concluded that the appropriate course in all the circumstances is to make an order under s 67 of the Civil Procedure Act staying the proceedings permanently. Mr McClintock addressed the alternative possibility of staying the proceedings on conditions as to the payment of costs. However that would, in effect, amount to the same thing as granting the adjournment conditionally. 60The annotations to s 67 in Ritchie's Uniform Civil Procedure remark that the provisions of the Civil Procedure Act "display a preference that, so far as appropriate, the stay power should only be exercised for finite periods". Ritchie further states: A corollary of that preference is the general proposition that the dismissal power should be exercised where the irregularity or non-compliance is such as to justify excluding the matter entirely from proceeding to determination. Despite that preference, the present section does recognise the court's power to stay proceedings for indefinite periods. 61This is an unusual case. There has been some non-compliance on the part of the plaintiff in failing to attend Court for four of the hearing days. As already indicated, I accept that he was unable to attend last Thursday and Friday but, as to Monday and Tuesday of this week, although he would probably would have been unable to face further cross-examination, I do not accept that he could not have attended for the purpose of giving instructions to his solicitor. By his absence, he has effectively prevented the hearing from coming to a conclusion. Nonetheless, that non-compliance is of itself arguably not sufficient to justify excluding the matter entirely from proceeding to determination. It is the combination of circumstances which produces that outcome, including the very substantial costs already incurred and my assessment of the plaintiff's prospects of success on the strength of the evidence I have already heard. 62In determining whether to make an order granting a stay of the proceedings, I am required under s 58 of the Civil Procedure Act to seek to act in accordance with the dictates of justice. Apart from the considerations to which I have already referred (as to costs, the plaintiff's prospects of success and the risk of a further non-appearance due to anxiety), I have had regard to the plaintiff's impecuniosity, his acknowledged unpaid debts to the very models as to his treatment of whom he seeks by these proceedings to vindicate his reputation and the fact that his own legal costs are being funded not by him but by his mother. 63In all the circumstances, I consider that, being unable to bring the proceedings to a final determination at this point, and having determined that the proceedings should not be adjourned, it is appropriate in the unusual circumstances of this case to order that the proceedings be stayed permanently. ORDERS: (1)That the plaintiff's application for an adjournment be refused. (2)That the proceedings be stayed permanently.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2013